Labor & Employment Law Blog

A recent NLRB decision in Lion Elastomers LLC, 372 NLRB 83 (May 1, 2023) restored prior Board law, which had used context-specific approaches to assess whether am employee’s outburst stripped him of protection under the National Labor Relations Act (the “Act”).  The decision by the current, three-member Democratic majority Board, makes it more difficult for employers to discipline or discharge employees who engage in profane, abusive or otherwise inappropriate conduct when done in connection with protected activity under the Act.  The restored law assesses employee conduct by applying highly amorphous setting-specific tests for the following various contexts: 

Strike and picketing activity have historically enjoyed broad protection under labor law.  This has often left employers suffering property or other damage as a result of strikes or picketing without a meaningful remedy.  A new U.S. Supreme Court ruling stands to change that.  

Employers may sue unions when members fail to take “reasonable precautions” to protect their employer’s property, even when the union members are engaged in a strike. On June 1, 2023, the Supreme Court ruled in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174 (No. 21–1449), that an employer can bring state law claims for damages if union members engage in actions that expose their employer’s property to “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.”

Plaintiff attorneys have deluged the courts with wage and hour class actions and PAGA lawsuits.  The first question an employee advocate asks of their potential client is, “can I see a pay stub?”  Instead of agreeing to represent employees for their harassment or wrongful termination claim, they convince the disgruntled ex-employee to act as a representative for a PAGA or class action for improper wage and hour practices. 

Is a staffing employer required to immediately pay final earned wages to a temporary employee whose assignment ends as a result of their being terminated by a client employer but where the temporary employee remains an employee of the staffing agency?  No, held a California Court of Appeal in the recent case of Young v. REMX Specialty Staffing No. A165081, 2023 WL 3331378, at *1 (Cal. Ct. App. May 10, 2023).

At the outset of the pandemic, the Department of Homeland Security (DHS) allowed flexibility in the requirements for Form I-9 compliance for employees working remotely due to COVID-19.  The DHS announced that it would defer the physical presence or physical inspection requirements associated with the verification of acceptable documents. We previously reported on the standard here.  

The U.S. Department of Labor (DOL) has released a newly-updated Family and Medical Leave Act (FMLA) poster, which is available here.

Per the applicable FMLA regulations, “covered employers” must post and keep posted on their premises, in conspicuous locations where employees are employed and where it can be readily seen by employees and applicants for employment, a notice of explaining FMLA’s provisions and the procedures for filing a complaint for FMLA violations with the DOL. Employers are covered by the FMLA if they employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.  Covered employers must post this notice, even if none of their employees are eligible for FMLA leave. The DOL’s FMLA poster is designed to fulfill such posting requirements.

Tragically, California is reeling from the effects of two mass shootings in almost as many days, each one leaving in its wake shattered lives. These devastating events are on top of what is shaping up to be an especially violent year so far, with multiple mass shootings taking place less than one month into the year.

The pandemic opened Pandora's box for many employers including having employees work remotely.  Remote work has created a plethora of management issues including communications for employees working different schedules over various time zones, technology and security challenges for the home office, dress code for zoom calls, and a myriad of legal considerations such as time keeping from the home rather than from the office, enforceability of non-compete agreements, reimbursing employees for costs associated with home as the office, 1099 misclassification, unemployment compensation, workers' compensation, licensure requirements, and unexpected state and local taxes to name a few.  As Gen Z has begun to supplant Boomers in the workplace, Zoomers need to be given flexibility in their job or bouncing to the next job is a harsh reality.  As a result, many employers are providing employees with the option to work remotely as an employment benefit of the post-pandemic world.

Given the current state of the economy, many employers are considering reductions in work hours and potential layoffs.  As businesses consider taking action to save money and prevent potential closure, they must do so carefully in order to manage and reduce risk of future litigation related to its actions.  This blog discusses the appropriate steps that a business must take when conducting a reduction in force (“RIF”).

Recent mass layoffs by tech companies, such as Twitter and Meta, have made headlines.  The massive layoff by Twitter on November 4, 2022 has already resulted in a lawsuit filed by former Twitter employees for violations of the federal Worker Adjustment and Retraining Notification (“WARN”) Act.  The WARN Act requires certain employers to provide 60-day advance notice in cases of qualified plant closings and mass layoffs, allowing employees and their families with transition time to seek alternate employment or skills training.